Death Penalty Drugs Teach Us About Scientific Progress and the Free Market

For the pharmaceutical companies that could produce lethal drugs, the ethical and legal hurdles just aren't worth it.

In October, confusion about lethal injection drugs bought Richard Glossip 37 more days to live. The accused murderer’s execution was postponed on the day-of, just hours after Oklahoma’s Department of Corrections discovered it had received the wrong chemical. The mix-up was the latest complication in the long, tortured, intravenous trip of death penalty drugs. As pharmaceutical companies increasingly refuse to sell them, scarcity reigns despite demand.

But drug suppliers are getting out of the death game. In 2011, the pharmaceutical company Hospira announced it was ceasing production of the drug sodium thiopental, a commonly used anesthetic used to knock out condemned inmates before administration of lethal drugs, after months of pressure from activists protesting the death penalty. Though the company was the country’s only manufacturer of sodium thiopental, ending production was a wise PR move and didn’t hurt much, at least financially. Sales of the anesthetic only made up 0.25 percent of Hospira’s total drug revenue.

Supply usually rises to meet demand, but, so far, enterprising drugmakers haven’t swooped in to meet executioners’ needs, at least not in the U.S. Not that this is surprising: Doing so presents P.R. challenges and, as Hospira’s president pointed out, invites lawsuits against both the facility and its employees. In some states, officials have attempted to buy sodium thiopental from overseas manufacturers only to be thwarted by the FDA, which refuses to approve the drugs. Others have had to make do with what was available.

At the time sodium thiopental production ceased, there were 3,261 inmates on death row, leaving little time for death-bent officials to mix up new cocktails. In some cases, they were forced to break with the agreed-upon method of using multiple chemicals, using a single drug instead. Individual doses of pentobarbital — a derivative of a horse-euthanizing drug — have been used successfully, but its use is still being debated. Just today, the Supreme Court delayed the execution of Missouri convict Ernest Lee Johnson after his attorneys argued that pentobarbital caused enough pain to count as a violation of the Eighth Amendment.

The sedative midazolam has also been used as a substitute in lethal drug cocktails, but, like pentobarbital, it has the potential to cause needless suffering. It was blamed for the botched execution of Dennis McGuire in 2014, in which he remained alive for 15 minutes after it was administered with a second drug. Ditto Oklahoma’s Clayton Lockett, who, after receiving the drug cocktail, convulsed for 45 minutes before he finally died.

A group of Oklahoma inmates brought their concerns about midazolam to the Supreme Court this year, only to be overruled. While dissenting judges like Justice Sonia Sotomayor agreed that the drug was essentially “the chemical equivalent of being burned at the stake,” its supporters, like Justice Samuel Alito, didn’t think the inmates made a compelling enough case.

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But a sharp observation that Alito made during that hearing points at the bigger issue. The risk of additional pain, he said, was at least in part due to activists’ success in convincing pharmaceutical companies to stop selling lethal injection drugs to executioners. He’s not wrong. Most of the approved “ethical” drugs are no longer available, and nobody’s making or finding any new ones. Still, pharmacists and scientists simply don’t want to get involved.

Glossip’s execution has been rescheduled for this Friday, though the Oklahoma Department of Corrections hasn’t been able to explain what led to the confusion between potassium chloride and a related but unapproved chemical known as potassium acetate. Whether the substitution was actually due to a shortage or to a genuine error (“I still don’t know why we had potassium acetate,” a DoC spokesperson told Time) remains to be seen.

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What is clear is that pharmaceutical companies aren’t going to budge, forcing the frustrated states that still stand by the death penalty to rethink the lethal injection method altogether. Utah, for one, has brought back the firing squad, and Oklahoma has made asphyxiation with nitrogen gas its official back-up method. In light of the ongoing death penalty drug clusterfuck, five states have ushered in bills calling for a repeal of the policy, but 31 still stubbornly stand by tradition. Ultimately — and ironically — it’s the ethics of death that make capital punishment so complicated.